Government by Blog Post

Abstract

Since Democrats lost their filibuster-proof majority in the Senate in the 2010 midterm elections-due in large part to the rising unpopularity of the Affordable Care Act (ACA) and the growing strength of the Tea Party-President Obama was largely unable to advance his agenda through the legislative process. Faced with Republican opposition at every step, Obama increasingly turned to executive power to take action where Congress would not. By 2011, the mantra of his presidency became "We can't wait." Charlie Savage reported that the President coined this slogan at a strategy meeting to "more aggressively use executive power to govern in the face of Congressional obstructionism." 1 When Congress will not legislate to the President's satisfaction, he will act alone. In a White House blog post fittingly titled "We Can't Wait" the administration listed all of the President's executive actions, stressing that he "is not letting congressional gridlock slow our economic growth." 2 By my count, Obama has repeated this phrase at least a dozen times to justify taking executive action where Congress would not pass him the bill he wants. 3 * Associate Professor, South Texas College of Law, Houston. This essay is adapted from Unraveled: Obamacare, Religious Liberty, & Executive Power (Cambridge University Press 2016). I would like to thank the members of the FIU Law Review and all of the participants of the symposium. 1 Charlie Savage, Shift on Executive Power Lets Obama Bypass Rivals, N.Y. TIMES (Apr. 22, 2012), http://nyti.ms/1SgzZnC. 2 We Can't Wait, WHITEHOUSE.GOV (Oct. 24, 2011), www.whitehouse.gov/economy/jobs/wecant-wait. 3 Press Release, The White House, Remarks by the President on the Economy and Housing (Oct. 24, 2011, 2:15 PM) ("So I'm here to say to all of you-and to say to the people of Nevada and the people of Las Vegas-we can't wait for an increasingly dysfunctional Congress to do its job. Where they won't act, I will. In recent weeks, we decided to stop waiting for Congress to fix No Child Left Behind, and decided to give states the flexibility they need to help our children meet higher standards.") (emphasis added), www.whitehouse.gov/the-press-office/2011/10/24/remarks-president-economy-andhousing; Press Release, The White House, Remarks by the President at a Campaign Event (Oct. 25, 2011, 7:36 PM) ("And so we're going to keep on putting pressure on them, but in the meantime we're saying we can't wait for Congress, and we're going to go ahead and do everything we can through executive actions-whether it's this refinancing program, or tomorrow I'm going to be talking about making college more affordable for young people-we're not going to wait for Congress.") (emphasis added), www.whitehouse.gov/the-press-office/2011/10/25/remarks-president-campaign-event-1; Press Release, The White House, Remarks by the President at Signing of Executive Order (Oct. 31, 2011, 12:50 PM) ("Congress has been trying since February to do something about this. It has not yet been able to get it done. And it is the belief of this admin...

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